Home
Constitutional History

Asma Jilani vs Government of Punjab

Miss Asma Jilani Vs. Govt. Of The Punjab

P.L.D. 1972 S.C. 139

 ABROGATION OF CONSTITUTION

Overruling STATE Vs. DOSSO, P.L.D. 1958 S.C. 533 and approving Mir Hassan Vs. The State, P.L.D. 1969 Lah. 786 (F.B.) Kelsen not approved  (Dosso Overruled)

“Applying the doctrine of "Legal positivism” propounded by Kelsen, it was held in Dosso that  "a constitution and the National Legal Order under it is disrupted by an abrupt political change not within the contemplation of the constitution” then such a change "is called a revolution and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order", therefore, any change, no matter how or by whom brought about, whether by violence or nonviolent coup d'etat or even by a person already in a public position, is "in law a revolution if it annuls the constitution and the annulment is effective". If persons assuming power under such a change "can successfully require the inhabitants of the country to conform to the new regime, then. the revolution itself becomes a law-creating fact, because thereafter its own legality is judged not by reference to the annulled constitution but by reference to its own success". According to international law "a victorious revolution or a successful coup d'etat is an internationally recognized legal method of changing a constitution". 

This principle is wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or otherwise. Martial Law does not by itself involve abrogation of civil law and functioning of civil authorities and certainly does not vest the commander of the Armed Forces with the power of abrogating the fundamental law of the country. Commander of Armed Forces is bound by his oath to defend the constitution. The doctrine of "legal positivism" propounded by Hans Kelsen is not universally accepted, and it does not formulate any legal norm for the daily concern of judges, legal or administrators and therefore, cannot be made the basis of a decision of a Court of law.”

Asma Jilani Vs Govt of the Punjab, Leading case law, Constitutional History of Pak

Brief Facts of the case:

The father of the appellant, Malik Ghulam Jilani was arrested under an Order dated 22nd December 1971 issued under rule 32 (i) (b) read with rule 213 of the Defence of Pakistan Rules, 1971. This Order was challenged in the Lahore High Court, and a notice was issued to the Government of the Punjab for 31 December 1971, However, a day earlier i.e., on 30 December 1971. Government rescinded this Order and substituted it by another purported to have been issued under Martial Law Regulation No. 78 by the Martial Law Administrator “Zone "C". The writ petition was accordingly amended and on the hearing on 15th January 1972 the Government raised a preliminary objection that the jurisdiction of the High Court was barred in the matter by virtue of the provisions of clause 2 of the Jurisdiction of Courts (Removal of Doubts) Order, 1969 promulgated by the Chief Martial Law Administrator. The High Court (Shafi-urRehman, J) relying on State v. Dosso, P.L.D. 1958 S.C. 533 held that the Jurisdiction of Courts (Removal of Doubts) Order, 1969 was valid and binding and as such, it had no jurisdiction to entertain and decide the petition. 

In the other appeal, the detention of Mr. Altaf Hussain Gauhar, under Martial Law Order No. 78 ordered by the Martial law - Administrator Zone 'D' was challenged before the High Court of Sindh and Baluchistan sitting at Karachi by filing a writ petition which was dismissed for substantially the same reasons as given in the Lahore case. 

The appeals were heard and allowed by the Supreme Court declaring "both the impugned orders of detention to be void and without legal effect" setting both the detenus at liberty.

Major legal questions before the Supreme court:

As Per Hamood-ur-Rehman, C.J., the precise question before the Supreme Court was whether the High Courts had jurisdiction under Article 98 of the Constitution of Pakistan (1962) to enquire into the validity of detention “under the Martial Law Regulation No. 78 of 1971 in view of the bar created by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 1969. The further question was whether the doctrine enunciated in the case of State Vs Dosso PLD 1958 S.C. (Pak) 533 was correct, The successive maneuverings for usurpation of power under the pseudonym the effectiveness to merit the legal recognition that was given to them in the case of State Vs Dosso.

JUDGMENT:

Held, that in laying down a novel juristic principle of such far-reaching importance, the Chief Justice in the case of State Vs. Dosso proceeded on the basis of certain assumptions, namely:

(1) That the basic doctrines of legal positivism, which he was accepting, were such firmly and universally accepted doctrines that “the whole science of modern jurisprudence” rested upon them; 

2) That any abrupt political change not within the contemplation of the Constitution constitutes a revolution, no matter how temporary a  transitory the change, if no one has taken any step to oppose it; and 

3) That the rule of international law with regard to the recognition of State can determine the validity also of the State's internal sovereignty.

"These assumptions were not justified. Kelsen’s theory was, by no means, universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen even attempts to formulate any theory which “favours totalitarianism)”. Kelsen was only trying to lay dow a pure theory of law as a rule of normative science consisting of “‘an aggregate or system or norms”, He was propounding a theory of law as a, “mere jurists or system or norms”. 

He was propounding a theory of law as a “mere jurists” proposition about law. He was not attempting to lay down any legal norm or legal norms which are “the daily concerns of judges, legal practitioners or administrators”. kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. He did not lay down the proposition that the command of the person in authority is a source of law. kelsen’s attempt to justify the principle of effectiveness from the standpoint of international law cannot also be justified, for it assumes “the primacy of international law over national law”. In doing so he has overlooked that for the purposes of international law and legal person is the state and not the community and that in international law there is no “legal order” as such. The recognition of a state under international law has nothing to do with the internal sovereignty of the state, and this kind of recognition of a state must not be confused with the recognition of the head of a state through the recognition of other states but through the municipal law of his own state. The question of recognition of a government from the point of view of international law becomes important only when a change in the form of government also involves a break in the legal continuity of the state, or where the question arises as to whether the new government has a reasonable expectancy of permanence so as to be able to claim the representative of the state. 

Analysis of Kelsen's Theory by Chief Justice:

Regarding the doctrine of "legal positivism” propounded by Hans Kelsen which was purportedly made the basis of Dosso case by Muhammad Munir, C. J., it was observed that his assumptions of the doctrine were not justified for the reasons that Kelsen's theory. 

  1.  was not universally accepted;
  2. was not the basic doctrine of modern jurisprudence; 
  3. Does not favor totalitarianism; 
  4.  Was a pure theory of law consisting of “an aggregate or  system of norms: 
  5. Does not lay down any legal norms for "the daily ‘concerns: of judges, legal practitioners or administrators. 
  6. does not say that command of the person in authority is a source of law; 
  7. cannot justify the principle of “effectiveness” from the standpoint of International Law for, the primacy of international law over national law cannot be assumed, as in international law there is no legal order as such; and
  8. Ignores the fact that recognition of a State under International law has nothing whatever to do with the internal sovereignty of the state. 

Observation of the chief justice:

the observations of the chief justice in dosso’s case are not covered upon the principles of international law if the territory and the people remain substantially the same there is no change in the corpus or international entity of the state and the revolutionary government and the new state are, according to international law, the legitimate government and the valid constituents of the state. This proposition does not find support from any principle of international law.

According to Oppenheim:

according to openheim’s view as propounded in his book of international law, if the revolutionary government is ineffective and/or has no “reasonable expectancy of permanence” under/or does not “enjoy the acquiescence of the population”, then the international community may well refuse to recognize it, even though its territorial integrity remains unchanged and its people remain substantially the same. the basic idea, therefore, is true that the chief justice of the supreme court not only misapplied the doctrine of hans kelsen, but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. even the disciples of kelsen have hesitated to go as far as kelsen had gone.

Grund-norm:

In any event, if a grund-norm is necessary, Pakistan need not have to look to the western legal theorists to discuss it. Pakistan’s own grund-norm is enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Allah almighty alone, and the authority exercisable by the people within the limits prescribed by him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the objectives resolution passed by the constituent assembly of Pakistan on the 7th of March, 1949. This has not been abrogated by any one so far, nor has this been departed deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Quran.

BASIC CONCEPT SOVEREIGNTY:

The basic concept underlying this unalterable principle of sovereignty is that, entire body politic becomes a trustee for the discharge of sovereign functions, Since in complex society every citizen cannot personally participate in the performance of trust, the body politic appoints state functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or facts to discharge his obligations under a trust. 
The functional Head of the State is chosen by the Community and has to by assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for no one is above the law.
It was therefore held that the principle enunciated in Dosso is Wholly unsustainable and it cannot be treated as good law either on the basis of Stare Decisis or otherwise. 

 LEGAL ANYLISIS OF THE EVENTS:

Now to judge the validity of the events that took place on and from the 24th of March, 1969. On the 24th of March, 1969, Field Marshal Muhammad Ayub Khan, the then President of Pakistan, wrote a letter to the Commander-in-Chief of the Army expressing profound regret for coming to the conclusion that “all civil administration and Constitutional authority in the country has become ineffective” and admitting after reciting the unhappy state of events that has taken place in the country earlier, that “it is beyond the capacity of the Civil Government to deal with the present complex situation and the defense forces must step in.” In these circumstances, he thought that there was no option left for him but to Step aside and leave it to the defense forces of Pakistan, which today represent the only effective and legal instrument, to take over full control of the affairs of the country”, and finally called upon the Commander-in-Chief to do the needful. This was followed by a broadcast over the Radio network at 7:15 P.M., of the 25th of March, 1969. 
There was nothing either in this letter or in this broadcast to show that he was appointing General Agha Muhammad Yahya Khan as his successor-in-office or was giving him any autonym to abrogate the constitution which he had himself given to the country in 1962. Both these merely called upon the Commander-in-Chief of the army to discharge his legal and constitutional responsibility not only to defend the country against external aggression but also to save it from internal disorder and chaos. He did not even proclaim Martial Law. Nevertheless, the Commander-in-Chief on the very same day, namely, the 25th d March, 1969 on his own proclaimed Martial Law throughout the length and breadth of Pakistan and assumed the powers of the Chief Martial Law Administrator. He also abrogated the constitution, dissolved the National and Provincial Assemblies and declared that all persons holding office as President, members of the President’s Council, Ministers, Governors of Provinces and members of their Council of Ministers shall cease to hold office with immediate effect. Existing laws and courts were, however, preserved with the proviso that no writ or other order shall be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law. It is clear that under the Constitution of 1962, Field Marshal Muhammad Ayub Khan had no power to hand over power to anybody. Under Article 12 of the Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the acting President of the country and an election had to be held within a period of 90 days to fill the vacancy, Under Article 30, the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and may be for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the civil administration. It is difficult, however, to appreciate under what authority a Military Commander could proclaim Martial Law.

MARTIAL LAW:

Martial Law, in the present times in England, has acquired various senses. In its original sense, it is perhaps now only identifiable in the law relating to the enforcement of discipline in the forces at home and abroad. In this sense, this branch of Martial Law is now better known as “military law” and is in time of peace enforced under various statutes, such as the Army Act, the Navy Act and the Air Force Act. It derives its authority from these statutes passed by the civil law-making bodies. In International Law, Martial Law means the powers of military commander in war time in enemy territory as part of the jus belle. In this sense, as the Duke of Wellington once said in the House of Lords it is “neither more nor less than the will of the General who Commands the Army”.

We must distinguish clearly between Martial Law as machinery for the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. 

Martial Law of the first category is normally, brought in by a proclamation issued under the authority of the civil Government and it can displace the civil Government only where a situation has arisen in which it has become impossible for the civil courts and other civil authorities to function. The imposition of Martial Law does not of its own force require the closing of the civil courts or the abrogation of the authority of the civil Government.

The maximum inter arms lodges silent applies in the municipal field only where a situation has arisen in which it has become impossible for the courts to function, for, on the other hand, it is an equally well established principle that where the civil courts are sitting and civil authorities are functioning the establishment of Martial Law cannot be justified. The validity of Martial Law is in this Sense always a judicial question, for the courts have always claimed and have, in fact, exercised the right to say whether the necessity for the imposition of Martial Law in this limited Common Law sense existed.

From the examination of the various authorities on the subject one is driven to the conclusion that the proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a state of an agency set up and maintained by the state itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the state in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State. It is, therefore, not correct to say that the proclamation of Martial Law by itself must necessarily give the Commander of the Armed Forces the power to abrogate the constitution, which he is bound by his oath to defend.

Regarding the imposition of Martial Law by General Muhammad Yahya Khan, it was held that it was illegal and P.O. 3 of 1969 that curtailed the jurisdiction of the Supreme Court and the High Courts was unconstitutional and Martial Law Regulation No. 78 which gave the Martial Law authorities "very wide powers" to detain a person without trial for any length of time without giving him any reasons for such detention or any opportunity even of making any representation against such a detention was not only invalid and illegitimate but also incapable of being sustained even on ground of Necessity.

On incidental matters, the Supreme Court ruled as follows:

(i) Law itself is not a legal concept for, what is law is really a theoretical question. Conclusions of law do not depend upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Ivor Jennings has said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press, 1933 (page 83) "the task which many writers on Jurisprudence attempt to fulfill in defining law is a futile one" for, according to him, “law has no definition except in a particular context." So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. 

(ii) The Courts in the country gave full effect to the Constitution of 1962 and adjudicated upon the rights and duties of citizens in accordance with the terms thereof by recognizing this law constitutive medium as a competent authority to exercise that function as also enforced the laws created by that medium in a number of cases. Thus all the laws made and acts done by the various Governments, civil and military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They had not only de facto validity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. The validity of the acts done thereunder are no longer, therefore, open to challenge. 

(iii) The Courts do not decide abstract hypothetical or contingent questions or give mere declarations in the air. There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions. The Court's judicial function is to adjudicate upon a real and present controversy which is formally raised before it by a litigant. If the litigant does not choose to raise a question, however important it might be, it is not for the Court to raise it suo motu. 

(iv) In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can the Judges become mere slaves of precedents. The rule of star decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some-other grave injustice is likely to occur by strict adherence to the, rule.

(v) The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been claimed by Supreme Court and other Courts of superior jurisdiction in all civilized countries. 

(vi) Recourse could be had to the doctrine of necessity to validate and condone the illegality of certain legislations in order to save the country from greater chaos and the citizens from further difficulties. 

Conclusion:

The Supreme Court overruling Dosso case held that the principle laid down in this case that “where constitution and a national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution then such a change is a revolution and its legal effect is not only validity of the new legal order brought about by the change" is wholly unsustainable and cannot be treated as good law either on the principle of Stare Decisis or otherwise. 
The Supreme Court further held that Martial Law does not by itself involve abrogation of civil law and functioning of civil authorities and does not vest the Commander of Armed Forces with the power of abrogating the fundamental law of the country as the Commander is bound by his oath to defend the Constitution. 
Read also:
Highly accomplished, meticulously organized, and detailed Attorney with a proven track record of success in conducting legal research, analysis, trial preparation, and document drafting.